This Will Do

On February 1, the Department of Health and Human Services released a “Notice of Proposed Rulemaking” that included two important changes to its controversial requirement that most health-insurance plans cover contraceptives at no cost to women. Together, these two changes should put to rest the claim that the HHS mandate wantonly violates religious liberty. Questions may remain about the wisdom of the mandate as a matter of public policy, but its critics should at least stop claiming that it’s motivated by hostility to the Catholic Church.

The first change in the new HHS proposal simplifies the conditions for an exemption from the mandate. Previously, an employer had to meet several ill-formulated criteria: the employer’s purpose had to be “the inculcation of religious values,” and most of those it served or employed had to “share its religious tenets.” Many critics complained that these criteria might be understood to exclude churches that ran soup kitchens or homeless shelters—or helped anyone in need without regard to his or her confessional status. With its new proposal, the HHS has adopted the Internal Revenue Code’s much simpler definition of a “religious employer,” the one that determines which employers have to pay taxes. It is unlikely that the original HHS criteria would ever have been interpreted to the disadvantage of any real house of worship, but there was no reason to leave any doubt—or to introduce a doubtful understanding of religion in a set of insurance regulations. As HHS Secretary Kathleen Sebelius acknowledged, the old rules “caused more anxiety and conflict than was appropriate.”

The second change announced by HHS is more substantial. It provides a comprehensive explanation of how employees and students of nonprofit religious institutions that don’t qualify for the exemption will be able to get coverage for contraceptives without the institutions themselves having “to contract, arrange, pay, or refer for” services to which they object. Such institutions will simply notify their provider that, for religious reasons, they decline to pay for an insurance product that covers contraceptives. The provider will then be required to offer a free stand-alone policy for contraceptives to employees or students of the institution. The provider will bear the up-front costs of the extra coverage, but in the long run such coverage turns out to be “cost neutral,” since paying more for contraceptive services now means not having to pay for as many births later.

When this work-around was first proposed last year, it remained unclear how the accommodation would affect nonprofit religious institutions that insure themselves instead of buying a group plan from an insurance company. According to the new proposal, the companies that administer the health plans of these self-insured institutions will be required to arrange for a third-party provider to offer—and pay for—a separate policy covering only contraceptives. Since the issuer of such a policy won’t enjoy any long-term savings because of it, the federal government will offset the issuer’s costs by reducing its fee for selling insurance in the new online exchanges. The accommodation still doesn’t extend to private business owners who object to paying for what they regard as an immoral product. As Eduardo Peñalver has pointed out at dotCommonweal, nothing would have prevented the HHS from asking insurers to do for any employer what they will now be asked to do only for nonprofit religious organizations. Indeed, it might have been simpler and more prudent to avoid the whole controversy by making this a mandate not for employers to pay for coverage of contraceptives, but for insurance providers to offer it separately—and at no expense—to any policyholder who doesn’t already have it, especially since this coverage is good for their bottom line.

Of course, most other services do cost insurers money. The government could not so easily accommodate every employer who had a moral objection to something on the government’s list of things all health insurance should include. If a Scientologist, say, didn’t want to pay for his employees’ psychotropic medication, the government could not fairly ask that his insurance company eat the cost. In other words, the Obama administration’s shrewd accommodation of Catholic nonprofit organizations doesn’t provide a generalizable solution. It is a one-off fix, made possible by the particular economics of reproductive health care. It has no bearing on the constitutional principle, affirmed by the most conservative members of the current Supreme Court, that religious believers are not exempt from laws of general applicability. The claims of conscience must never be ignored, but they do not necessarily entitle one to relief from any practical difficulty that arises from disagreeing with most of one’s fellow citizens about a duly enacted law.

Comments

If the modifications outlined in the editorial above are correct, it seems like the objection of so many churches and non-profit religious institutions to being forced to pay for procedures deemed by them to be morally objectionablehas been overcome. Hopefully this controversy is over. However, as the editors seem to suggest, there may be at least some good reason for a similar accomodation being extended to to owners of commercial businesses who object to paying for these same services on religious grounds; specifically, because these services more than pay for themselves, and therefore the imposition of the mandate is saving health insurance companies considerable money. They should be required to pay for them, not the employers. The argument that to make such an exception opens up the possibility of other employers objecting to paying for different procedures that violate their religious conscious is not equivalent, that is, unless those other procedures also provide the opportunity for considerable profit on the part of the insurers. However, as also is implied above, the simplest way to satisfy those currently objecting on religous grounds, as well as those seeking the benefits of "free" contraceptives as well, is simply to have the insurance companies pay for the contraceptives directly in as they are, at least on the monetary level, the prime beneficiaries of such a mandate. I would urge the Obama administration to take this course.

I think Commonweals simplistic understanding of the long term and unintended consequences of the Obama policies are representatvie of the consistant pandering you do to the leftist tendencies of this Administration. You have totally left out the convictions of CHristian (and Catholic) business people who find abortion and aborition inducing drugs against their moral and ethical standards. To continue to create an absurd web of who pays for what as a shell game to offer cover, and for Commonweal to endorse it, shows the shallowness of both the Administration and COmmonweal.

There is no God Given right to contraception or Abortion, but there is a God given Right to Life and a clear biblical understnading that killing is immoral. COmmonweal continues to come out on the wrong end of this argument. But no one should be surprised.

I suspect that the idea that these services would more than pay for themselves is a prediction and not a fact. If their profitability were guaranteed there would be no need for a law requiring the insurers to provide them.

One of the major arguments for providing "free" contraceptives is that the widespread use of contraceptives will prevent unwanted pregnancies and the consequences of such, including the millions, if not billions, of dollars this will save on healthcare costs. This is accepted as close to a "fact" as we probably can get to right now by both proponents and opponents of the mandate. A major beneficialry, if not the prime beneficiary, of these "savings" would be the healthcare industry. You're right, there is no reason for this law mandating that employers pay for contraceptives. In my opinion, the only reasons for the mandate is becasue the Obama administration is pandering to Planned Parenthood and other groups of that kind, and, possibly, as a "sop" to the insurance industry, part of the extra profits they are likely to receive because of the mandate that all have such insurance or face penalties, to get at least their passive support. I think Obamacare has many fine parts; the mandating of contraceptives and possible abortificants as part of the plan employers must pay for is an unnecessary and divisive inclusion that should never have been there in the first place.

I agree with S.P. Gravely, Walter Skykes, and Wayne Sheridan. This accomodation is a smotke screen. In addition to the onerous contraception mandate, the Obama Administration has enacted more laws liberalizing abortion than any previous administration. I also find it offensive that the editorial likes the idea that the use of contraceptives will save insurance companies the costs of live births! Life is a gift from God! Insurance companies should not operate on the horrible premise that life gets in the way of profits. That's a dangerous place to go. Our Catholic Church practically stands alone in upholding the great value of human life. I don't see how anyone can claim to be Catholic without upholding this great, important moral principle.

Not needed? Says who? Contraceptive hormonal medications are used not only to limit births, but also to prevent the crippling pain of endometriosis and other common "female problems," such as ovarian cystic syndrome, that used to mean many work days lost each year by women, as well as to ward off the recurrence of female cancers, including ovarian, a generally aggressive disease. In fact, more women use these medications on a regular basis to prevent disease than use them for contraception. And contrary to many male commentators, they are far from cheap. All in all, the mandate is a boon to women of all ages, regardless of their fertility. The fact that it will also lead to fewer unwanted pregnancies, and therefore fewer abortions, also serves the prolife cause, a fact more prolifers might appreciate if they hadn't been led to erroneously conflate contraceptives and abortifacients.

This is extremely painful for non-Catholics. The entire debate rests on civil rights concerns: the fundamental principles of equal access come from institutional acceptance of our tax money right along with Catholics'. How is it that such non-profits can insist on being funded by Protestants yet discriminate against us when we are your institutional employees? Since no institution actually PAID for contraceptive coverage, this is even more heartbreaking for us. We are reduced to labor market commodities - you don't have to work for us if you don't like it - while the institutions have "moral values". Well for non-Catholics - Protestants, Jews, Hindus, Muslims - contraception is our commitment to care for creation, for stewardship of God's earth by not over populating, care for our families, and preservation of marital intimacy. We are being remanded to second class status. We also have no assurances, HIPPA notwithstanding, that taking the supplemental policy won't lead to retaliation by people such as Ms. McCarron who writes here. If Catholic sponsored institutions wish to BE Catholic, fine. Then don't take our tax money! Not a penny! You cannot have it both ways. You cannot take our money then discriminate against religious differences any more than segregationists did against racial differences. This may make some of you happy. This may still infuriate others. But for the latter you are doing harm to those who serve your institutions loyally. We are NOT commodities but people of conscience! Hostility to our needs continues the myth that only Catholics have morals. Morality lies in the power of conscience NOT in imposing your rules on others. Catholics risk becoming the new George Wallace standing in the doorway. Think about the implications of what you advocate. It is doing grave harm to ecumenism and to justice everywhere.

Churchlady, your reasoning seems a bit flawed. No one is saying that Catholics, or Catholic owned businesses, or Catholic institutions that must pay taxes should not do so. Catholics have the same rights of citizenship as any other citizen, and the same right to be protected by the Constitution. The issue is whether Catholic organizations who pay for, and are now obliged to pay for, health insurance for their employees should be obliged to pay for procedures they consider immoral and aginst their beliefs. In like ways, Jewish or Muslim organizations should not be obliged, under severe penalty, as is the case with the heathcare mandate, to pay for prok to be served in the organizations cafeteria, if such is against their religious standards. You seem to be full of bile against Catholics.

You are changing the debate. I am not discussing those institutions paying taxes.

I am saying that Catholic institutions that have become purely non-profits by the TAKING of tax money - money we all pay to you - now want to deny their diverse employee body the right to their free exercise of conscience.

Catholic employers do NOT pay for contraception. It is just there. The exercise of conscience is up to the employee. Your organizations do NOT have the right to bar non-Catholics from access to that very expensive option especially when your money is NOT being spent on it at all. It will cost the same, present or not.

You can fix this by never again taking one red cent from the taxpaying public. Then you revert to being a purely religious organization, can discriminate all you like in hiring, services, etc. But you may not have it both ways. I'm sure the Church can find the funds if it wished to.

Serving pork is a ludicrous comparison - it's not a health issue. No one asks public hospitals to serve tofu. Setting up a straw man to knock down is the province of weak arguments. Same with saying I am"full of bile" against Catholics. Ludicrous. I AM full of bile against people who pretend that their morality trumps everyone else's. Only when you self fund can that pretense be carried out.

Catholics or any religious institution that takes tax dollars comes under the Civil Rights Act of equal accommodation. If you think this is fine, may you NEVER work for a Jehovah's Witness who demands that transfusions not be covered. It is the exact same thing. If the Jehovah's Witness institution takes tax money or in any other way is covered by the Civil Rights laws, they are bound to deliver what most of us agree is a moral good - transfusions for those who want and need them.

Institutional morality cannot trump the institution's own decision to be part of the secular society in taking support from the government in the form of universally collected tax money. It's bigotry against all others to demand your special rights over all of ours.

This is another argument for single payer. Whatever your position is on contraception or anything else, health insurance in the US is considered employee compensation. Therefore the employer is not directly paying for anything, but rather providing health insurance in lieu of pay. Our present tax code encourages this by not taxing these "benefits" as salary. This was all an accident of pay caps and attracting employees during and right after WWII. I would also ask Ms McCarron what laws the President passed. I don't recall the last Congress or the one before that passing any laws liberalizing abortion. The President can't pass laws. Facts please, not assertions.

Church Lady, non-profit organizations receive that status in part because, among other reasons, because they perform a service to society without seeking profit, and they also receive funds from governments because they perform suchuseful services. If the government did not value those services, such status and funds would not be provided. Therefore, I find your argument that because the church and it's institutions receive funds driectly and indirectly from the government, they therefore must conform to every mandate of the government even when that mandate may violate their moral and religous standards, specious. My tax argument was not a canard; Catholics and Catholic institutions pay taxes as do non-Catholics and non-Catholic institutions. It is not a transfer of money from non-Catholics to Catholics, as you seem to imply, when Catholic institutions receive benefits from the government. My "pork" point is actually sound and not far-fetched. Perhaps, the banning of "brisk," which is occuring in other countries and was tried in San Francisco seem more apt to you. The reasoning behind such government bands are usually civil rights (the baby's) or health related. In any event, when challanged, such bands are often found un-Constitutional. The government must be very careful and discerning when it tries to mandate actions or prohibit actions that violate the tenets of established religions. The bishops, the Catholic institutions and non-Catholic institutions have every right to challange this ill-considered mandate, and I hope they win their case in the courts, or, at least, negotiate a change in the mandate (steps are being taken by the administration now, as you know, in that direction).

Wayne - This is America. This is the law. Once an institution accepts tax money it comes under the CIVIL RIGHTS ACT on equal accommodations. It must hire without discrimination and must honor RELIGIOUS DIVERSITY.

No institution is paying for contraception. But the Church has put itself into the position, and so declared yesterday, they do not wish to honor other people's religious values and legal rights.

Religious discrimination is as pernicious as racial discrimination, and no amount of saying how good your services are will take away that sin. The Church is biased and intent on practicing religious discrimination. That is un-American and frankly un-Christian.

Nothing you say will clean this discrimination against non-Catholics. If the Church demands ideological purity, stop taking our tax dollars. You risk the Church's loss of tax exempt status by this move anyway. That may well end the entire debate. There is no "God given reason" we as a diverse nation should underwrite your policies.

Churchlady, your interpretation of the Civil Rights Act and how it applies to this case may or may not be correct; I doubt it. However, my basic point that if an institution receives money from the government, or an indivdual for that matter, that fact does not supercede the Constitutional rights of that institution or individual. Yes, as you said, "this is America," and I thank God that we live in this country that has a Constitution that prevents the government from trmapling on the rights of indivduals and their associations. Your interpretation of what is Christian and un-Christian seems bizarre. There is no discrimination involved in trying to assert rights under the Constitution. To call the position here by the Church and others discrimination is also bizarre.

No constitutional rights are absolute in all time and all circumstances. Freedom of Religion? ask Mormons & Christian Scientists about that. Freedom of Speech/Assembly? No shouting "fire" in a crowded theater. You can be required to request a parade/public gathering permit that may/may not be granted. 2nd Amendment? Limits do exist and it is highly possible that more limits will be imposed.

What's most disturbing is how the spokesmen for our Catholic bishops continue to take offense at what is, at most, a highly theoretical *potential* violation of Catholic consciences, and yet totally ignore the clear and concrete violation of non-Catholic consciences that would result from Catholic employers refusing to allow their non-Catholic employees the right to deal directly with insurance companies and thereby make their own moral choices. The Obama administration has bent over backwards trying to find ways NOT to violate even the appearance of moral coercion of here. If only the bishops would acknowledge their responsibility to do the same.

I wrote: "The Obama administration has bent over backwards trying to find ways NOT to violate even the appearance of moral coercion of here. If only the bishops would acknowledge their responsibility to do the same."

Oops, that got a bit garbled, so in the interest of clarity, which is too often lacking, let me try again:

I believe the Obama adminsitration has bent over backwards in an attempt to refrain from even the appearance of moral coercion. If only the bishops would acknowledge their responsibility to do the same.

The fundamentals of racial integration rest on the absolute premises I have outlined - you do business as a public accommodation or you accept tax money, you are obliged to honor the Civil Rights laws of equal access. For the Church to claim it is exempt on 'religious grounds' - it is. All churches ARE already exempt. But once a religiously sponsored institution accepts tax money, it is covered by Civil Rights laws. It is the agreement that comes with taking tax dollars from a diverse body of citizens. That is SECULAR money for which the Church knowingly and openly negotiated.

Catholic sponsored institutions therefore must hire diversely, must provide equal accommodation, and must give full weight to the moral values of those it employs. There is no way around that - unless the Church wishes to end that financing.

The Catholic Church, once a faithful servant of racial integration, has now become the bastion of religious discrimination. The First Amendment rights of consciences and faith of non-Catholics exist EXACTLY EQUAL to Catholic views, no exceptions.

If you don't like it - don't take our tax dollars. Go back to the days when charities, hospitals, and colleges were entirely Catholic funded with only Catholic money. We won't mind. Protestants can and will pick up the slack. We don't discriminate. It is past time when you can accept our generosity in honoring and respecting and defending Catholic values and then have you slap us in the face by denying us our religious views. It is particularly past time when you can fund your bigotry against us with our money. There IS a war against religion. Catholics are waging it against the rest of us. This is America NOT the Vatican. You have a lot of choices. Having us fund our own exclusions at your hands is NOT one of them.

churchlady is right, the problem is the cath church can not be a source for BC or abortion. the other stuff is secondary. already the cath charitites does no longer adoption services due to gay adoption. Benedict may be right and this is the age of the mustard seed, the church will withdraw from fed funds, no longer do charity on a large scale, will become cut off from the public square. the dark age of secular humanism will eclipe the public square in its relativity and close freedom through the window of the natualistic phallacy Hume so brillantly exampled.

Mr. Burke - Secular society IS American society in which all faiths are equal. Yes - if you wish to promote your views to the exclusion of the rest of us, you may. And we will support that. But if you enter the secular world of tax acceptance, you cannot do this any more than schools, hospitals, charities can discriminate racially. Religious freedom means that - but religious respect for others is now resting on the institution taking our collective dollars. That is how racial desegregation moved forward - you could not discriminate against people who provided taxes to the institutions from which they were barred. Well, you still can't. This time it's religious discrimination against non-Catholics.

I cannot understand why Catholic Charities and other such wonderful institutions cannot continue to do their work with church funds. Why in the world did you stop doing CATHOLIC adoptions for CATHOLIC babies in CATHOLIC homes? I grew up in a time when that IS what you did and did well. Lord knows that Catholic girls who do NOT want abortions are quite urgently needing that care and sense of safety about where they place their babies. You could keep doing that. To end all services simply because you do not want the burdens of civil society that come with tax funds is evidence that your first line of commitment is NOT charity but money. We in the Protestant world are shocked by that!

I also don't understand why you cannot honor our commitments to our moral values - and it's not remotely true we embrace birth control for convenience but do so out of a massive commitment to theological principles of care for families and for God's creation. The Church is not paying for it - it is just 'there' with those who are not Catholic free to exercise their conscience. Catholics can freely be Catholic - but you cannot force the rest of us to abide by your views when we find them out of sync with our moral and faith values.

To assert our views are the 'coming dark age' is sheer hubris on your part. I have refrained in every circumstance from reducing this argument to sneering disparaging of the Church with all its problems. If you cannot exercise the same respect, you lose all credibility. Shame on you.

And unless you're being funny - and it's not particularly so -the word is "fallacy".

"The claims of conscience must never be ignored, but they do not necessarily entitle one to relief from any practical difficulty that arises from disagreeing with most of one’s fellow citizens about a duly enacted law."

So. would you have said that to the black man when his conscience told him not to obey Jim Crow laws? How far Commonweal has fallen to resort to such a rationalizaton.

Mr. Proska - it is the Church, not the slave, who is propagating the New Jim Crow laws. It is the Church that is George Wallace accepting federal education funding and denying access.

Your Church has merely substituted religious bias for a racial one. You willingly, gleefully, cheerfully deny non-Catholics their rights under the pretext of following your conscience. That is EXACTLY what racial segregationists did - the attempted to justify segregation because they believed Bibilical injunctions demanded racial segregation in eternal punishment for the sins of those giving shelter to Ham.

You are destroying the Church's role as a moral leader with this massive bigotry and intolerance over an issue that even previous Popes and Bishops have openly considered a matter of personal conscience. Shame on the Church for retreating.

You describe the basis for your morals as follows: "Well for non-Catholics - Protestants, Jews, Hindus, Muslims - contraception is our commitment to care for creation, for stewardship of God's earth by not over populating, care for our families, and preservation of marital intimacy."

Contraception is your moral basis and commitment to care for creation, your family and marital intimacy? That is an ideology of mythical proportions. I don't think you can really speak for all Protestants, Jews, Hindus and Muslims and certainly not for all women. Linking your moral ideology to a pill composed of a pregnant mare's urine is iffy to say the least. How can we defend your conscience claims if this is what you cling to as the driving force in your life?

Margaret - I do not denigrate your faith visions.You simply are not equipped to evaluate mine. You know nothing of our long journey through Scripture, theological reflection, and discussions with, yes, even Catholics.

Grow up and face this overwhelming fact. You may not tell me what to think. In none of my comments have I questioned Catholic values. That, today, will end. I have been working with Catholics in ecumenical coalition and have often been the voice to secular people for Catholics' right to be Catholic. That, today, will end. I have never been more disgusted by a group of smug self righteous people than on this blog. You live in America, NOT the Vatican. Adhere to democracy, to diversity, to respect and inclusion or get the hell out. You have NO right to dictate to others. My respect for and cooperation with Catholics has just ended after 40 years. That's it. I'm done. What a marvelous collection of bigots you all have proven to be.

To Margaret: I don't think churchlady needs you to defend her conscience claims. Shame on you for your judgmental tone. Yours is not an appropriate attitude for effective evangalizing. And I challenge you on your stance towards churchlady's beliefs about stewardship of God's earth. She is in agreement with the United Stated Conference of Bishops. One of their Seven Themes of Catholic Social Teaching is to quote:

Care for God's Creation

"We show our respect for the Creator by our stewardship of creation. Care for the earth is not just an Earth Day slogan, it is a requirement of our faith. We are called to protect people and the planet, living our faith in relationship with all of Gods creation. This environmental challenge has fundamental moral and ethical dimensions that cannot be ignored."

You owe Churchlady a heartfelt apology for your mean-spirited response.